Decision Date: 10/16/95 Archive Date:
10/16/95
DOCKET NO. 91-12 360 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Little
Rock, Arkansas
THE ISSUE
Entitlement to service connection for residuals of a lumbar
injury.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. Westfall, Counsel
INTRODUCTION
The veteran served on active duty from July 1954 to May
1956.
This appeal arises from a June 1989 rating action of the RO
which denied service connection for residuals of an injury
to the lumbar spine, to include spondylolisthesis at L5 - S1
with degenerative changes, and which denied a permanent and
total disability rating for pension purposes. In August
1992 and in January 1994, the Board of Veterans' Appeals
(Board) remanded the case for additional development. In
April 1995, the RO granted a permanent and total disability
rating for pension purposes.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran alleges that a back injury during active duty
has resulted in a chronic back disorder. He maintains that
he experienced constant back trouble from the time of the
service injury to the present, although the condition has
worsened in more recent years. He says that he received
treatment at a VA medical center in 1976.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all of
the evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the claim of entitlement to service connection
for residuals of an injury of the lumbar spine.
FINDINGS OF FACT
1. Any back injury the veteran may have sustained during
service was acute and transitory in nature and was fully
resolved at the time of service separation.
2. A chronic disorder of the lumbosacral spine was first
definitively diagnosed in 1988, many years after service
separation.
3. There has not been shown any relationship between the
veteran's current chronic low back disability and his period
of active duty.
CONCLUSION OF LAW
Spondylolisthesis at L5 - S1 with degenerative joint disease
was not incurred in or aggravated by service, 38 U.S.C.A. §§
1110, 1131, (West 1991); 38 C.F.R. §§ 3.303(d) (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
We have found that the veteran's claim is well grounded
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991).
That is, we find that he has presented a claim which is
plausible. We are also satisfied that all relevant facts
have been properly developed. No further assistance to the
veteran is required to comply with the duty to assist
mandated by 38 U.S.C.A. § 5107(a). We note that the RO has
made repeated efforts to obtain VA medical center treatment
records, especially those during 1976, but no records
reflecting treatment of the lumbosacral spine during 1976 or
1977 have been found. Treatment records dated in April 1976
were for treatment of the neck and shoulders with diagnosis
in May 1976 of a chronic disorder of the cervical spine.
Service connection may be granted for chronic disability
resulting from disease or injury incurred in or aggravated
during service. 38 U.S.C.A. §§ 1110, 1131. A chronic
disorder means a persistent and ongoing disorder, not merely
having had symptoms in service which were acute and
transitory and which left no chronic identifiable residual
disability or resulted in a chronic identifiable disorder.
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (1994).
All service medical records are unavailable due to a fire-
related incident. Service hospital summaries indicated that
the veteran was treated during February and March 1956 for
pharyngitis. Morning reports dated in February 1956
indicated that the veteran was absent due to being treated
at a service hospital. These service records make no
reference to a disability of the lumbosacral spine. On
examination prior to service separation, the examiner noted
that the veteran's spine was normal. There was no reference
to any back injury.
The veteran was seen at a VA outpatient clinic in August
1988 complaining of back trouble since an inservice injury.
His complaints included spasms and knots, but he denied pain
radiation or numbness. X-rays of the lumbosacral spine were
negative with well-maintained disc spaces and no evidence of
spondylolysis. The diagnostic impression was spondylolysis
at L5 - S1.
The veteran was hospitalized at a VA medical center in
September 1988, November 1988, and September 1989, for
treatment of disorders not at issue. These records contain
no reference to a lumbosacral disability.
The veteran underwent VA examination in May 1989. He
reported having hurt his back in Germany in 1956. He said
he had received no specific treatment and had been returned
to duty that day. He experienced intermittent problems over
the years described as lumbar area pain. X-rays were
interpreted as showing very minimal spondylolisthesis of
L5/S1, a slightly narrowed disc space at L5 - S1, and the
remainder of the examination was normal including the
sacroiliac joints. Relevant clinical findings showed full
range of motion of the back with negative straight leg
raising tests and no sensory deficits. Reflexes were
intact. There was no atrophy. The diagnoses included mild
spondylolisthesis at L5 - S1 with mild degenerative joint
disease by X-ray, and a normal back examination otherwise.
Multiple statements from friends and family dated in April
and May 1990 are included in the record. These statements
are essentially to the effect that the veteran returned from
service with back complaints which proved to be ongoing over
the years.
A report of an evaluation performed in May 1990 was received
from J. A., M.D. The veteran reported a long history of
back problems which he said began in service. Relevant
findings pertaining to the lumbosacral spine showed mild
limitation of motion which was considered essentially within
normal limits.
A hearing was conducted before a traveling panel of the
Board of Veterans' Appeals in August 1991. The veteran said
he injured his back in March 1956 unloading boxes of rations
from a truck. He reported he had been examined at a service
hospital and returned to duty at day's end with no treatment
or X-rays given. He said he began having problems at that
time which continued until service separation. He reported
having lost two weeks' work in 1962 with problems in the
same area. He mentioned work, in 1962, which involved
loading 100-pound gas cylinders. According to the veteran,
his current disorders were manifested by back problems which
included left leg weakness and cramps.
The veteran underwent a VA neurological examination in
December 1991. He reported difficulty getting up from a
chair and standing and walking or sitting for long periods
of time. He said he used aspirin to counteract low back
pain. The examiner said that he appeared to be in pain on
standing from a sitting position, on walking, and on
sitting. There was no evidence of footdrop. He did not use
a cane. He had difficulty heel and toe walking on the left.
There was atrophy of the left lower extremity with
fasciculations. The examiner estimated 50 percent loss of
normal strength of the left lower extremity with diminished
sensation. The relevant diagnosis was L5 and S1 nerve root
compression in the left lumbar region and S1 nerve root
compression in the right lumbar region.
The veteran underwent a special VA orthopedic examination in
September 1992. The veteran stated that he had seen a
private physician in 1956 after service separation due to a
back injury due to playing basketball. The diagnosis at
that time, he recollected, was back strain. He reinjured
his back in 1962 loading 100-pound bottles. He saw a
private physician in 1972. His job at that time required
lifting. He reinjured his back in 1976 when he misstepped
from a porch. The orthopedist interpreted X-rays taken in
January 1992 as showing Grade I to II spondylolisthesis of
L5 on S1 with a narrowing of the interspace at L5 - S1. The
diagnosis was spondylolisthesis at L5 - S1 and a history of
recurrent lumbar strain.
A note dated in December 1992 was received from J. A. H.,
M.D. He said that his treatment records from 1962 to 1972
had been destroyed but that he remembered seeing the veteran
in the 1960's and 1970's for problems in the lumbar area of
his back. He could not recollect details.
A VA examination was conducted in February 1994. The
veteran walked slowly with a limp on the left. His gait was
wide-based. He wore a brace over the low back. Clinical
findings showed limitation of motion with pain and deep
tendon reflexes and angle jerks at one plus, bilaterally.
Sensation appeared normal. The diagnoses included
degenerative joint disease of the lumbar spine with some
limitation of motion and no evidence of gross neurological
deficit.
Even though the service medical records are not available,
in the main, the report of examination prior to service
separation dated in May 1956 reflects a notation of a normal
spine. Indeed, the available service hospital admission
information showed that the veteran was treated in 1956 for
two episodes of pharyngitis and not for any claimed back
injury.
Thereafter, the clinical evidence of record shows that the
first diagnosis of a chronic lumbosacral disability was in
1988, more than three decades following service. Further,
VA treatment records dated in 1976 reflect treatment of the
cervical spine and not the lumbosacral spine.
Finally, the veteran, on VA examination in September 1992,
gave a history of additional injuries of the lumbar spine
after service, in 1962, 1972, and 1976. Since the sole
relevant evidence indicative of the veteran's state of
health at the termination of active duty is the service
separation examination report, in the face of his own
acknowledgment of several post service lumbar injuries, his
contention that the current condition is solely the result
of an inservice incident loses credibility. Further, the
veteran is not competent to make a causal connection which
requires medical expertise. The fact is that no physician
traces the veteran's current low back ailment to any
incident of service.
There is no competent evidence of record which shows a
direct relationship between service and the veteran's
current lumbosacral disability. The preponderance of the
evidence is against entitlement to service connection for
residuals of a lumbar injury.
ORDER
Service connection for residuals of a lumbar injury is
denied.
BRUCE KANNEE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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